{"id":3558,"date":"2025-07-18T16:20:10","date_gmt":"2025-07-18T16:20:10","guid":{"rendered":"https:\/\/www.newsbeep.com\/au\/3558\/"},"modified":"2025-07-18T16:20:10","modified_gmt":"2025-07-18T16:20:10","slug":"ninth-circuit-judge-questions-continued-viability-of-internet-wiretapping-claims-telecoms-mobile-cable-communications","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/au\/3558\/","title":{"rendered":"Ninth Circuit Judge Questions Continued Viability Of Internet Wiretapping Claims – Telecoms, Mobile & Cable Communications"},"content":{"rendered":"

Readers of this blog may recall a piece<\/a> in which we discussed an unfavorable
\nNinth Circuit California Invasion of Privacy Act<\/a>
\n(“CIPA”) internet wiretapping decision. Interestingly,
\nthe Ninth Circuit recently weighed in again on similar internet
\nwiretapping claims, and this time, it reached a very different
\noutcome. Below, we discuss the decision’s impact and its
\nimplications on present and future internet wiretapping claims.<\/p>\n

Are Internet Wiretapping Lawsuits Shakedowns?<\/p>\n

At least one Ninth Circuit judge thinks that the possibility
\nexists. In Gutierrez v. Converse Inc.<\/a>, Gutierrez
\nalleged that Converse violated CIPA by wiretapping her internet
\ncommunications with its website chat<\/a> feature. Because the website chat
\nfunction was operated by a third-party, Gutierrez asserted that
\nConverse violated CIPA by illegally wiretapping his internet
\ncommunications. The district court found that no disputes of
\nmaterial fact existed because Gutierrez failed to provide
\nsufficient evidence that the third-party: (1) made an unauthorized
\nconnection with Gutierrez’s communications; and (2) read or
\nattempted to read the contents of her communications. On appeal,
\nthe Ninth Circuit panel unanimously affirmed the granting of
\nsummary judgment for Converse. While two of the judges affirmed the
\ndistrict court on evidentiary grounds, the third judge sitting on
\nthe panel wrote a separate, concurring opinion which may finally
\nput an end to CIPA wiretapping claims.<\/p>\n

In his concurrence, Judge Bybee looked at the plain language of
\nthe statute and concluded that CIPA’s wiretapping provisions do
\nnot apply to internet communications. Despite amending CIPA on at
\nleast three occasions, Judge Bybee noted that the California
\nlegislature had not updated CIPA’s wiretapping clause to
\naccount for advances in technology, such as smartphones, which it
\ncertainly could have. Judge Bybee then questioned why plaintiffs,
\nlike Gutierrez, “contort \u00a7 631(a) [CIPA] to apply to
\ninternet communications” when plaintiffs can seek recourse
\nunder the California Consumer Privacy Act<\/a>
\n(“CCPA”). Contrasting the private rights of action
\nallowed for under CIPA and the CCPA, Judge Bybee explicitly
\nidentified the reason that plaintiffs like Gutierrez assert CIPA
\nwiretapping claims by stating “[i]t may be about the money
\n\u2013 CIPA allows plaintiffs to recover $5,000 per violation
\ncompared to just $750 per violation<\/a> under the CCPA. In a class
\naction like this one, the difference in total recovery (and
\nattorneys’ fees) could be millions of dollars.” As Judge
\nBybee stated, if the California legislature wanted to apply
\nCIPA’s wiretapping provision to the internet it could have
\n\u2013 it is not the Court’s responsibility to do the
\nCalifornia legislature’s job.<\/p>\n

What Does This Mean for Future Internet Wiretapping
\nClaims?<\/p>\n

Although this unpublished decision may have limited precedential value<\/a>, Judge Bybee’s
\nconcurrence is a breath of fresh air for online companies. The
\nopinion echoes a refrain that the attorneys at Klein Moynihan Turco<\/a> (“KMT”) have
\nargued since internet wiretapping lawsuits began \u2013 the plain
\nlanguage of CIPA does not extend to internet communications. The
\nimpact of this opinion remains to be seen, and it must be noted
\nthat the district court evaluated and ruled on Gutierrez’s
\nclaims at the summary judgment stage, which requires plaintiffs to
\nput forth evidence substantiating their claims. Although this
\nopinion is unlikely to stop internet wiretapping lawsuits from
\nbeing filed, it may well lead other California federal judges to
\nagree with Judge Bybee and rule that CIPA’s wiretapping clause
\ndoes not apply to internet communications.<\/p>\n

The use of third-party tracking software (including pixels and
\nweb beacons) is nearly ubiquitous, and online businesses must
\nfrequently review and update their privacy policies to ensure that
\nthey inform consumers about data collection, use, and sharing
\npractices. Because federal and state privacy laws are constantly
\nevolving, companies must carefully review their websites to ensure
\nthat they are providing adequate notice to (and, ideally, obtaining
\nconsent from) website visitors of the use of third-party tracking
\nsoftware.<\/p>\n

The attorneys at KMT regularly assist companies with federal and
\nstate marketing and consumer privacy law compliance. In addition,
\nthe KMT litigation team has successfully defended numerous
\nbusinesses against federal and state privacy law claims across the
\ncountry.<\/p>\n

Similar Blog Posts:<\/p>\n

CIPA Claims and GET Requests<\/a><\/p>\n

KMT Managing Partner, David O. Klein, was recently
\nfeatured in a Bloomberg Law article discussing state wiretapping
\nlaws<\/a><\/p>\n

Federal Wiretapping Claims \u2013 The Next
\nFrontier?<\/a><\/p>\n

The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/p>\n","protected":false},"excerpt":{"rendered":"Readers of this blog may recall a piece in which we discussed an unfavorable Ninth Circuit California Invasion…\n","protected":false},"author":2,"featured_media":3559,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[64,63,237,105],"class_list":{"0":"post-3558","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-internet","8":"tag-au","9":"tag-australia","10":"tag-internet","11":"tag-technology"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/3558","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/comments?post=3558"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/3558\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media\/3559"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media?parent=3558"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/categories?post=3558"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/tags?post=3558"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}